IN THE CASE OF:	  

		BOARD DATE:	       25 November 2008

		DOCKET NUMBER:  AR20080012642 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that his performance of duty in the service was good and he was promoted to corporal.  He also implies that the quality of his work in civilian life has been good. 

3.  The applicant provides copies of letters written by his commanders and his executive officer at the time of his discharge, and letters from his last two civilian employers in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 24 February 1953, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialties 1745 (Light Weapons Infantryman) and 4405 (Clerk Typist).

3.  On or about 8 March 1953, the applicant was assigned to Combat Command "C," 3rd Armored Division, Fort Knox, Kentucky, for duty as a clerk typist.

4.  On 13 April 1954, the applicant was promoted to corporal, pay grade E-4.

5.  On 30 September 1954, charges were preferred against the applicant under the Uniform Code of Military Justice for two specifications of violation of Article 125 (Sodomy).

6.  On 8 October 1954, the applicant signed the following statement:  "I hereby accept an undesirable discharge for the good of the service and to escape trial by General Courts-martial.  I understand that my separation from the Army effected by undesirable discharge will be under conditions other than honorable; that I may be deprived of many rights as a veteran under both Federal and State legislature; and that I may expect to encounter substantial prejudice in civilian life in situations where in the type of service rendered in any branch of the Armed Forces or the character of discharge received there from may have a bearing."

7.  On 9 November 1954, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 24 November 1954, the applicant was discharged accordingly.  His Report of Separation from the Armed Forces of the United States (DD Form 214) shows that he had completed a total of 1year, 9 months, and 3 days of creditable active military service during this period.

8.  A Separation of Homosexual Personnel (AGPZ Form 219), prepared on 
6 December 1954, summarized the applicant’s separation from the service.  It showed that his commanding officer recommended his discharge.  The field psychiatrist found the applicant not to be a confirmed homosexual and that discharge under the provisions of Army Regulation 600-443 (Separation of Homosexuals) was not indicated.  The Surgeon General's Office psychiatrist found no medical contradictions to the administrative separation.  The Army Personnel Board classified his case as Class II and recommended his discharge in accordance with Army Regulation 600-443, and issuance of an Undesirable Discharge Certificate.


9.  The letters provided by the applicant from his former commanders and executive officer appear to have been written in support of his application to the Army Discharge Review Board (ADRB).  Copies of the same letters are also contained in his service records. The authors state, in essence, that the applicant's character and efficiency were excellent.  He was a competent and willing worker who was well-liked by his contemporaries.  His overall performance was better than excellent and the loss of his earnest contributions was immediately felt by the staff section in which he worked.  The executive officer wrote that the only difficulty that the applicant encountered, during the period that the executive officer knew him, was as a passive member in a homosexual act.  Being a passive member in the act, he was equally guilty in the eyes of the Army.  However, in civilian life this is not the case.  It is not frowned upon as much as is the resulting type of discharge.   

10.  On 4 February 1955 the ADRB denied his appeal for an upgrade of his discharge.  

11.  Army Regulation 600-443, then in effect, prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army.  That regulation provided, in pertinent part, that true, confirmed, or habitual homosexual personnel, irrespective of sex, would not be permitted to serve in the Army in any capacity and prompt separation of known homosexuals from the Army was mandatory.  That regulation further provided that homosexual personnel coming within the purview of Department of the Army policy fall into several categories which may or may not overlap and will be more or less complicated by the facts and circumstances peculiar to the individual cases.  Cases, however, generally were classified as Class I or Class II.  Class I was defined as those cases accompanied by assault or coercion, as characterized by any act in or to which the other person involved did not willingly cooperate or consent or where consent was obtained through force, fraud, or actual intimidation, thereby constituting an invasion of the rights of another; or any homosexual action with a child under the age of consent, whether the child cooperates or not.  Class II was defined as those cases wherein true or confirmed homosexual personnel have engaged in one or more homosexual acts or where evidence supports proposal or attempt to perform an act of homosexuality and which does not fall into the category of Class I.

12.  Paragraph 7 of that regulation provided that when the investigation clearly indicates that the accused fell within the provisions which classified an individual as Class II, charges and specification(s) for trial by general court-martial (GCM) would be prepared and the accused would be confronted with them.  The accused was then offered the alternative of resigning in lieu of GCM.  Paragraph 
7b(1) specified the contents of the signed statement.  It provided that the accused accepted an undesirable discharge for the good of the service to escape trial by GCM.  It further included the understanding that separation from the Army would be under conditions other than honorable; that the member may be deprived of many rights as a veteran under both Federal and State legislation; and that the member may expect to encounter substantial prejudice in civilian life in situations where in the type of service rendered in any branch of the Armed Forces or the character of discharge received there from may have a bearing.

13.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation provides, in pertinent part, that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section II, of this regulation, and if there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act:

   a.  by using force, coercion, or intimidation;  
   
   b.  with a person under 16 years of age;  
   
   c.  with a subordinate in circumstances that violate customary military superior-subordinate relationships;  
   
   d.  openly in public view;
   
   e.  for compensation;
   
   f.  aboard a military vessel or aircraft; or  
   
   g.  in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other soldiers of the armed forces.  In all other cases, the type of discharge will reflect the character of the Soldier’s service.

14.  Chapter 3, section II of that regulation provides, in pertinent part, that characterization at separation will be based upon the quality of the Soldier’s service.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time.  It is a pattern of behavior and not the isolated instance 
which should be considered the governing factor in determination of character of service.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service when the reason for separation is based upon one or more acts or omissions, or on a pattern of behavior, that constitutes a significant departure from the conduct expected of Soldiers of the Army.

15.  The applicant provided two letters from former employers stating, in essence, that he had worked as a "full charge" bookkeeper.  His performance and contributions were closer to that of an accountant.  He willingly accepted challenges and problems and resolved them with equanimity.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's implied argument that his overall good record of military service and subsequent record of good civilian work should qualify him for an upgrade of his discharge does not sufficiently mitigate his misconduct.   

4. In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X __  ___X____  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012642



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ABCMR Record of Proceedings (cont)                                         AR20080012642



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